July 26, 2022 

BY ELECTRONIC MAIL DELIVERY

Office of General Counsel

Attn: Lisa J. Stevenson, Esq. 

Acting General Counsel 

Federal Election Commission

1050 First Street NE

Washington, DC 20463 

Re: Advisory Opinion Request

Dear Ms. Stevenson: 

Pursuant to 52 U.S.C. § 30108, we seek an advisory opinion on behalf of Bridget 

Fleming for Congress, Jackie Gordon for Congress, Conole for Congress, and Max Rose for 

Congress (“House Committees”). House Committees request confirmation that, in light of the 

Commission’s recent issuance of Advisory Opinion 2022-08 (NRCC) establishing a separate 

contribution limit for the August 23 primary election, they may, with the written authorization of 

contributors, redesignate contributions that were designated for the November 2022 general 

election to the August primary without regard to the 60-day timeframe for redesignating 

contributions under 11 C.F.R. § 110.1(b)(5)(ii)(A)(1)-(2). Because the August 23 primary 

election is less than 60 days away, House Committees respectfully request that the Commission 

issue an advisory opinion in response to this request within 20 days pursuant to 11 C.F.R. § 

112.4. 

I. FACTUAL DISCUSSION 

Bridget Fleming, Jackie Gordon, Francis Conole, and Max Rose (“House Candidates”) 

are candidates currently running for nomination in the Democratic primary for U.S. House of 

Representatives in New York. House Committees are their authorized principal campaign 

committees. New York was originally scheduled to hold its federal primary election on June 28, 

2022, but, due to redistricting litigation, a state court moved the federal primary to August 23, 

2022. House Candidates were all candidates in the originally scheduled-June 28 primary 

election.

As detailed in Advisory Opinion 2022-08 (NRCC), on March 31, while New York 

congressional candidates were collecting signatures to appear on the June 28 primary election 

ballot, a state trial court found the congressional maps to be used in that election unconstitutional 

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and prevented the maps from being used.1 The decision was appealed and eventually reached 

New York’s Court of Appeals, the state’s highest court. On April 27, 2022, the Court of Appeals 

affirmed the trial court’s ruling that the maps were unconstitutional and instructed the trial court 

to use a special master to draw new constitutional maps.2

 On April 29, 2022, the trial court instructed 

the special master to finalize new congressional maps by May 20 and set a new primary date of 

August 23.3 On May 11, 2022, the state trial court set the ballot access rules for the August 23, 2022, 

primary.4

 On May 20, the state trial court adopted the final maps, setting the lines for the August 23 

primary.5

On May 26, 2022, NRCC submitted an advisory opinion request to the Federal Election 

Commission arguing that federal candidates seeking nomination for election in New York may 

accept contributions for the court-ordered August 23 primary election separate, and, in addition 

to, contributions already accepted for the June 28 primary election.6 NRCC argued that 

congressional candidates face a “new electoral situation” since the court ordered the new August 

23 primary and that the candidates have been forced to “essentially restart their campaigns for a 

new primary that is less than three months away.”7 

On June 23, 2022, the Commission responded to NRCC’s request by issuing a unanimous 

advisory opinion, concluding that certain federal House candidates for nomination in New York 

are entitled to a separate contribution limit for the court-ordered August 23, 2022, primary 

election.8 The Commission explained that “preparations for the June primary were already well 

under way by the time the state courts established the new election date, ballot access 

requirements, and district lines for candidates wishing to run in the New York primary.”9 The 

cumulative effect of the courts’ orders, the Commission explained, created “a new electoral 

situation” that required candidates to file in congressional districts with new boundaries and 

prepare, plan, and campaign for a new election approximately three months away and under new 

rules and potentially against new opposing candidates.10 Under these circumstances, the 

Commission concluded that federal candidates who sought nomination for election to the U.S. 

House of Representatives from New York for the June 28, 2022, primary election are entitled to 

1 Harkenrider v. Hochul, No. E2022-0116CV, 2022 WL 1819491, at *13 (Mar. 31, 2022). 2 Id.

3 Harkenrider v. Hochul, No. E2022-0116CV, at 2 (N.Y. Sup. Ct. Apr. 29, 2022); Advisory Opinion 2022-08 

(NRCC) at 2.

4 Harkenrider v. Hochul, No. E2022-011CV (N.Y. Sup. Ct. May 11, 2022); Advisory Opinion 2022-08 (NRCC) at 

3.

5 Harkenrider v. Hochul, No. E2022-0116CV (N.Y. Sup. Ct. May 21, 2022). 6 See Advisory Opinion Request 2022-08 (NRCC). 7 Id. at 3. 8 Advisory Opinion 2022-08 (NRCC) at 4. 9 Id. 10 Id. at 5. 

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a new contribution limit for the August 23, 2022, primary election, and that the new limit applies 

to contributions made after May 20, 2022.11 

In light of this advisory opinion, House Candidates have all since been accepting 

contributions for the court-ordered August 23 primary election. Because the House Candidates 

are now running in essentially a second election before the November general election, they need 

as many resources as possible to use towards their primary campaigns. They would like to 

redesignate some contributions designated for the November 2022 general election to the August 

primary election, including contributions that were received more than sixty days prior to June 

23, 2022, which is the date the Commission issued its advisory opinion. The Commission was 

not asked, nor did it issue any guidance, on the process of redesignating any contributions 

received for the general election to the new August primary election if the contributions were 

received more than sixty days prior to June 23, 2022. 

The Commission’s redesignation rules under 11 C.F.R. § 110.1(b)(5)(ii)(A)(1)-(2) state 

that written redesignations of contributions for another election must be received by the 

committee’s treasurer within 60 days of receipt of the contribution. As a result, if the 60-day 

window applies here, the Committees will not be able to ask for written redesignations for a 

significant number of contributions designated for the general election, even if the donors prefer 

that their general election contributions be used for the August primary. However, by obtaining 

written redesignations of those contributions now, House Committees will be able to consolidate 

resources that they think are needed for their primary elections, and avoid having to conduct a 

mass refund or reattribution effort, if they do not receive their Democratic nominations in 

August. 

II. QUESTION PRESENTED

May House Committees receive redesignations of November 2022 general election 

contributions to the August primary election even if the redesignations are received more than 60 

days after the committee’s receipt of contributions, as long as the redesignation is received in 

writing prior to August 23, 2022? 

III. LEGAL ANALYSIS

Under the Federal Election Campaign Act of 1971, as amended, (the “Act”), candidate 

committees may accept $2,900 per election from individual contributors in the 2021-2022 

cycle.

12 These contributions may be designated for “a particular election.”13 Commission

regulations permit candidate committees to receive contributions designated for a general 

11 Id. at 6; FEC June 23, 2022 Open Meeting, at 20:10-28, https://youtu.be/yOXfLOWBL7Q (Commissioner 

Weintraub and Chair Dickerson acknowledging that the new contribution limit would apply to any similarly situated 

candidate running in New York congressional races). 12 52 U.S.C. § 30116(a)(1); 11 C.F.R. § 110.1(b); Price Index Adjustments for Contribution and Expenditure 

Limitations and Lobbyist Bundling Disclosure Threshold, 86 Fed. Reg. 7,867, 7869 (Feb. 2, 2021). 13 11 C.F.R. § 110.1(b)(2), (3), and (4).

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election prior to the primary election, provided that the committee employs an acceptable 

accounting method to distinguish between primary and general election contributions.14 If the 

candidate does not participate in the general election, any contributions received for that election 

must be refunded, redesignated, or reattributed.15 Otherwise, the candidate’s campaign will be 

liable for accepting excessive campaign contributions. 

There is no regulation on redesignation for contributions that are within the contribution 

limits and are given before the election for which they are designated. However, the Commission 

has promulgated regulations that allow a committee to request a written redesignation of 

excessive contributions and contributions given after the election for which they are designated 

but cannot be accepted.

16 For instance, the regulations explain that a committee may request a 

written redesignation of a contribution to a different election if: 

1. The contribution was designated in writing for a particular election, and the contribution,

either on its face or when aggregated with other contributions from the same contributor

for the same election, exceeds the contribution limits; or

2. The contribution was designated in writing for a particular election and the contribution

was made after that election and the contribution cannot be accepted under the net debts

outstanding provisions of the regulations.17

A contribution is considered redesignated for another election if the treasurer of the

recipient authorized political committee requests that the contributor provide a written 

redesignation of the contribution, informs the contributor that the contributor may request the 

refund of the contribution as an alternative to providing a written redesignation, and the written 

redesignation is provided within sixty days from the date of the treasurer’s receipt of the 

original contribution.

18

The Commission has explained that these rules permit political committees to “seek and 

obtain from contributors redesignations and reattributions of certain contributions that would 

otherwise be illegal.”19 In adopting these redesignation rules, the Commission stated that it was

“encourag[ing] candidates to pay their debts by eliminating the need to refund impermissible 

contributions and then solicit contributions for another election.”20 Further, the Commission 

included the 60-day timeline for obtaining written redesignations to allow committees sufficient 

14 11 C.F.R. § 102.9(e)(1). 15 See 11 C.F.R. §§ 102.9(e)(3), 110.1(b)(5). 16 See 11 C.F.R. §§ 102.9(e)(3), 110.1(b)(5). 17 11 C.F.R. § 110.1(b)(5)(i)(A)-(B). The same rules apply to undesignated contributions that exceed the 

contribution limits or were received after the date of an election for which the committee has no debts outstanding. 

Id. § 110.1(b)(5)(i)(C)-(D). 18 11 C.F.R. § 110.1(b)(5)(ii)(A)(1)-(2). 19 Id. at 760. 20 Contribution and Expenditure Limitations and Prohibitions; Contributions by Persons and Multicandidate Political 

Committees, 52 Fed. Reg. 760, 763 (Jan. 9, 1987) (“E&J”). 

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time to “examine the contribution for compliance with the contribution limits, make a written 

request for redesignation if necessary and receive the written redesignation from the 

contributor.”21 To be sure, the Commission stated that the “sixty day time limit . . . represents a 

balance between the need to establish a realistic deadline, on the one hand, and the need to 

resolve the problems created by excessive contributions as quickly as possible, on the other 

hand.”22 If a redesignation “is not received within the sixty day time frame, the contribution must 

be refunded.”23 

Notwithstanding the fact that the regulations, on their face, refer only to redesignation of 

excessive contributions or contributions made after the election that violate the net debts 

outstanding regulations, the Commission has noted that “nothing in the regulations is intended to 

suggest that political committees may not seek redesignation of contributions that are within the 

contribution limitations and restrictions.”24 In fact, in the past, the Commission has appeared to

apply the 60-day timeframe to redesignations of lawful contributions.25 

Considering the “new electoral situation” in New York congressional races, the 

Commission was correct to establish a contribution limit for the August 23 primary that is

separate from the cancelled June 28 primary. However, the Commission should not apply the 60-

day redesignation rule to otherwise lawful general election contributions received by House 

Committees. First, as noted, there is no explicit provision of the Act or regulations that explicitly 

prohibits House Committees from seeking written redesignation between June 23 and August 23, 

2022.26 In addition, the 60-day rule should not apply here because the House Committees did not 

even know they could raise towards an August 23 primary until June 23, 2022.27 Thus, the 60-

day redesignation rule cuts off an important source of revenue for the August 23 primary through 

no fault of any House Committee. The House Committees could not, and thus, did not seek 

redesignations towards a then-non-existent August 23 primary within 60-days of the receipt of 

those general election contributions. Many of these candidates received contributions towards the 

general election in 2021 and early in 2022. However, it was only on June 23, 2022, that they 

21 Id. at 763. 22 Id. at 763. 23 Id. 24 Advisory Opinion 2009-15 (White for Texas) at 6 n.7. 25 Advisory Opinion 2009-15 (White for Texas) at 6 n.7. In Advisory Opinion 2009-15 (White for Texas), the 

Commission considered whether a campaign committee could redesignate contributions designated for the 2012 

primary and/or 2012 general election to a 2009 or 2010 special election or runoff. The Commission reasoned that 

contributions properly designated for the 2012 primary and general elections could not presumptively redesignated 

to another election. The Commission, without explanation, still required compliance with its redesignation rules that 

were adopted to address excessive or otherwise illegal contributions, including the 60-day redesignation 

requirement.

26 As explained, the Commission’s Explanation and Justification for establishing redesignation rules makes clear 

that the Commission was concerned with providing a process to remedy illegal contributions short of requiring

absolute refund. See E&J, 52 Fed. Reg. at 761, 763. 27 Cf. Advisory Opinion 1992-15 (Russo for Congress) (concluding that the 60-day period begins to run on the date 

of the primary election for losing primary candidates because that is the date those candidates “have actual notice of 

the need to obtain redesignations . . . or refund the contribution”). 

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even knew they could raise towards this new election. If the Commission applies the 60-day 

redesignation rule towards these contributions, the House Committees are completely hand

strung because they were never able to seek redesignations for those contributions. 

Applying the 60-day rule will also have the unintended effect of preventing the House 

Committees from taking full advantage of the new contribution limit. For House Committees,

soliciting and receiving additional contributions from donors who gave to the general election is 

not realistic; some donors are unable or unwilling to contribute additional funds for a third 

election. As such, House Committees prefer to seek redesignation of contributions designated for 

the general election to the August primary election to obtain the full benefit of the new 

contribution limit. Permitting House Committees to seek redesignation of general election 

contributions to the August 23 primary election outside of the 60-day requirement advances the 

Commission’s interest. It reduces the need for House Committees to do mass refunds of general 

election contributions if their candidates do not advance to the general election. It also provides

House Committees with funds available for use to cover campaign expenses now, reducing the 

need of having to resolicit contributions from these contributors to cover any primary campaign 

debts if the candidates are unsuccessful.

Moreover, permitting House Committees to seek written signed redesignations under 

these unique electoral circumstances still keeps the choice to redesignate with the contributors.

Nothing about House Committee’s advisory opinion request would alter or undermine the 

contributors’ intent to have their contributions used in their preferred elections. 

For these reasons, we ask the Commission to confirm that House Committees may seek 

and obtain redesignations of general election contributions to the primary election even if those 

contributions were received by House Committees more than 60 days ago. 

Very truly yours, 

Rachel L. Jacobs 

Jonathan A. Peterson 

Counsel to Committees 

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